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Articles 1 - 30 of 73
Full-Text Articles in Law
Comments On Who Appoints D.C. Judges, Daniel A. Rezneck
Comments On Who Appoints D.C. Judges, Daniel A. Rezneck
University of the District of Columbia Law Review
No abstract provided.
Prologue To District Of Columbia Democracy And The Third Branch Of Government, John W. Nields, Timothy J. May
Prologue To District Of Columbia Democracy And The Third Branch Of Government, John W. Nields, Timothy J. May
University of the District of Columbia Law Review
Why does the President of the United States appoint the judges of the District of Columbia's local court system? Why is the District of Columbia's local court system funded and overseen by the United States Congress? Why does the United States Attorney for the District of Columbia and not the Attorney General for the District of Columbia function as a local prosecutor, prosecuting most D.C. Code crimes in the District of Columbia's courts? The four essays which follow this introduction explore the rich history behind these unusual structural features of the District of Columbia government; they present the arguments for …
The Right Of Public Participation In The Law-Making Process And The Role Of The Legislature In The Promotion Of This Right, Karen Czapanskiy, Rashida Manjoo
The Right Of Public Participation In The Law-Making Process And The Role Of The Legislature In The Promotion Of This Right, Karen Czapanskiy, Rashida Manjoo
Karen Czapanskiy
In 2006, the South African Constitutional Court found a constitutional right to participate in the legislative process in the case of Doctors for Life, Case CCT 12/05 (decided 17 August 2006). In this article, we argue that, first, legislation is better when legislators are required to invite and attend to public input, and, second, citizenship is better when legislators are required to invite and attend to public input. Doctors for Life puts South Africa on the road to improving both legislation and citizenship. In the United States, this road is largely untraveled. While rejecting traditional representative democracy as an adequate …
Expressive Minimalism And Fuzzy Signals: The Judiciary And The Role Of Law, Michele Goodwin
Expressive Minimalism And Fuzzy Signals: The Judiciary And The Role Of Law, Michele Goodwin
Chicago-Kent Law Review
The proper role of courts engenders significant debate. Yet, what seems better settled is the principle that courts are the place at which the common law is developed. Its genesis and modifications evolve out of the juridical process and when that process becomes encumbered or deferred to the legislature the role of the judiciary is called into question. This essay makes the case that expressive minimalism too often governs the common law judicial approach to biotechnology. The cases visited in this domain test our capacity to understand whether life is appropriately described as being beyond the definition of property, as …
Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Banks
Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Banks
Taunya Lovell Banks
Despite increasing support for global human rights ..., some scholars and constitutional democracies, like the United States, continue to resist constitutionalizing socio-economic rights. Socio-economic rights, unlike political and civil constitutional rights that usually prohibit government actions, are thought to impose positive obligations on government. As a result, constitutionalizing socio-economic rights raises questions about separation of powers and the competence of courts to decide traditionally legislative and executive matters. ... [W]hen transitional democracies, like South Africa, choose to constitutionalize socio-economic rights, courts inevitably must grapple with their role in the realization of those rights.... Two questions immediately come to mind: (1) …
The Social Life Of Regulation In Taipei City Hall: The Role Of Legality In The Administrative Bureaucracy, Anya Bernstein
The Social Life Of Regulation In Taipei City Hall: The Role Of Legality In The Administrative Bureaucracy, Anya Bernstein
Journal Articles
This article explores the role of legality in conceptions of state and society among bureaucrats in the Taipei, Taiwan city government. When administrators confront the global arena, the existence of law emblematizes modernity and the ability to participate in the international system. In interactions among administrators, law is laden with impossible ideals and fraught with assumptions of hypocrisy. In dealings with people outside the government, legality often signals the breakdown of other, more valuable social norms. Far from legitimating administrative action, legality itself is legitimated by reference to the same values as other social action: it is held up to …
Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski
Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski
Dalhousie Law Journal
Can sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms be interpreted to protect a constitutional right of access to government information? The author argues that the constitutional principle of democracy provides a foundation for judicial recognition of such a constitutional right of access even though the inclusion ofan explicit right to access to government information was rejected during the process of drafting the Charter Given that the Supreme Court of Canada's section 2(b) and 3 jurisprudence has been informed by the principle of democracy, the application of the principle may now guide the Court to include …
Constitutionalism And Democracy: An Essay In Honor Of Stanley N. Katz, Irwin P. Stotzky
Constitutionalism And Democracy: An Essay In Honor Of Stanley N. Katz, Irwin P. Stotzky
University of Miami Law Review
No abstract provided.
The Challenges Of Democratic Consolidation In Africa, Okechukwu Oko
The Challenges Of Democratic Consolidation In Africa, Okechukwu Oko
Okechukwu Oko
This paper, using Nigeria as a case study, examines the challenges of democratic consolidation in Africa. It will critically and objectively identify the problems and challenges of democratic consolidation in Africa and offer suggestions that will move Africa further along the path of constitutional democracy. It proceeds from the basic proposition that Africans’ thirst for genuine democracy is at present unslaked and perhaps unslakeable under the current circumstances in Africa. Democracy is off kilter in Nigeria, and indeed, most parts of Africa and appears to be spiraling over the edge into dictatorship, and perhaps even social disorder, fatally assaulted by …
Democratic Transition, Judicial Accountability And Judicialisation Of Politics In Africa, Hakeem O. Yusuf
Democratic Transition, Judicial Accountability And Judicialisation Of Politics In Africa, Hakeem O. Yusuf
Hakeem O Yusuf
Purpose – This paper examines the growing incidence of judicialisation of politics in Nigeria’s democratisation experience against the backdrop of questionable judicial accountability. Design/methodology/approach – The article draws on legal and political theory as well as comparative law perspectives. Findings – The judiciary faces a daunting task in deepening democracy and (re) instituting the rule of law. The formidable challenges derive in part from structural problems within the judiciary, deficient accountability credentials and the complexities of a troubled transition. Practical implications – Effective judicial mediation of political transition requires a transformed and accountable judiciary. Originality/value – The article calls attention …
An Empirical Examination Of The Impact At The Polls Of Indiana's Voter Identification Law, Michael J. Pitts
An Empirical Examination Of The Impact At The Polls Of Indiana's Voter Identification Law, Michael J. Pitts
Michael J. Pitts
No abstract provided.
What Will The Life Of Riley V. Kennedy Mean For Section 5 Of The Voting Rights Act?, Michael J. Pitts
What Will The Life Of Riley V. Kennedy Mean For Section 5 Of The Voting Rights Act?, Michael J. Pitts
Michael J. Pitts
No abstract provided.
Understanding Post's And Meiklejohn's Mistakes: The Central Role Of Adversary Democracy In The Theory Of Free Expression, Martin H. Redish, Abby Marie Mollen
Understanding Post's And Meiklejohn's Mistakes: The Central Role Of Adversary Democracy In The Theory Of Free Expression, Martin H. Redish, Abby Marie Mollen
Martin H Redish
In this article we provide a comprehensive and original critique of the free speech theories of two of the most heralded scholars of all time, Alexander Meiklejohn and Robert Post, and in so doing employ their theories as a foil for the development of an entirely new theory of free expression, grounded in precepts of "adversary democracy." Both Post and Meiklejohn purport to ground their theories of free expression in democratic theory, but both misperceive the true normative and descriptive nature of American political theory, and in any event both fashion free speech theories that undermine even their own perceptions …
States Of Terror, States Of Consent: Philip Bobbitt's Strategic Transnational Politics For The Twenty-First Century, Kenneth Anderson
States Of Terror, States Of Consent: Philip Bobbitt's Strategic Transnational Politics For The Twenty-First Century, Kenneth Anderson
Book Reviews
American University, WCL Research Paper No. 2008-64Abstract:This essay is a book review from the Times Literary Supplement of Philip Bobbitt's widely remarked and admired Terror and Consent. The review compares Bobbitt's unabashedly strategic view of the response of democratic states to terrorism, and contrasts it with more narrowly cost-benefit analysis-driven approaches to responding to terrorism. The review criticizes 'tactical' approaches to terrorism as too focused upon 'event driven catastrophism'. The review considers Bobbitt's analysis of the changing nature of states, and the rise of what he calls the 'market-state'. The essay ends by querying whether the market-state, as Bobbitt conceives …
The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan
The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan
Osgoode Hall Law Journal
This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may …
"Other Worlds Are Actual": Tully On The Imperial Roles Of Modern Constitutional Democracy, Michael Simpson
"Other Worlds Are Actual": Tully On The Imperial Roles Of Modern Constitutional Democracy, Michael Simpson
Osgoode Hall Law Journal
The globalization of modern legal and economic practices has not ushered in a state of perpetual peace as Kantians have famously predicted. Rather, it has reinforced the perpetual crises and violence that is today's realm of the political. This article examines James Tully's claim that the formalization of diverse legal traditions into the modular confines of modern constitutions, as nation-states and international taw, is a project of today's imperial hegemony. The global imperialism of modern constitutionalism is one that suppresses the vast multiplicity of existing legal pluralities and, consequently, fuels war and aggression, not perpetual peace. Tully's important analysis of …
Modern Constitutional Democracy And Imperialism, James Tully
Modern Constitutional Democracy And Imperialism, James Tully
Osgoode Hall Law Journal
To what extent is the development of modern constitutional democracy as a state form in the West and its spread around the world implicated in western imperialism? This has been a leading question of legal scholarship over the last thirty years. James Tully draws on this scholarship to present a preliminary answer. Part I sets out seven central features of modern constitutional democracy and its corresponding international institutions of law and government. Part II sets out three major imperial roles that these legal and political institutions have played, and continue to play. And finally, Part III surveys ways in which …
Is The Ban On Participation In Political Campaigns By Charities Essential To Their Vitality And Democracy? A Reply To Professor Tobin, Johnny Rex Buckles
Is The Ban On Participation In Political Campaigns By Charities Essential To Their Vitality And Democracy? A Reply To Professor Tobin, Johnny Rex Buckles
University of Richmond Law Review
No abstract provided.
Democracy And Opportunity: A New Paradigm In Tax Equity, James R. Repetti
Democracy And Opportunity: A New Paradigm In Tax Equity, James R. Repetti
Vanderbilt Law Review
Academics and policymakers pay little attention to the interaction of a tax system with the objectives of a just government. For example, in the debate about whether the United States should retain an income tax or adopt a consumption tax, most discussions focus on the relative efficiency and equity of the taxes. Proponents of a consumption tax worry that an income tax is inefficient because it burdens investment income. Advocates of an income tax fear that a consumption tax is not equitable because low-income taxpayers consume a greater percentage of their income than wealthy taxpayers. These concerns date at least …
Taking State Constitution Seriously, Marvin Krislov, Daniel M. Katz
Taking State Constitution Seriously, Marvin Krislov, Daniel M. Katz
Cornell Journal of Law and Public Policy
No abstract provided.
Counterconstitutionalism, Richard Albert
Counterconstitutionalism, Richard Albert
Dalhousie Law Journal
Democratic constitutionalism has often erected a high barrierseparating the citizen from the state. This is paradoxical because the very promise of constitutionalism is to produce precisely the opposite result: to bind the citizen to the state, and to create and cultivate a constitutional culture that is anchored in participatory democracy. The author has a name for this paradoxical state of affairs: counterconstitutionalism. In this article, the author introduces and illustrates the conceptof counterconstitutionalism with reference to billsof rights in constitutional states representing civil and common law traditions on four continents.
Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson
Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson
Law and Contemporary Problems
US President George W. Bush used force to bring the Taliban to its knees and create a fledgling democracy in Afghanistan, then invaded Iraq with the end goal of establishing a democracy there, as well. Meanwhile, presidential hopeful Barack Obama praised those who built democracy's arsenal to vanquish fascism, and who then built a series of alliances and a world order that would ultimately defeat communism, seeming to extol and vindicate the previous US efforts to impose democracy by force. These two leaders' struggles to nail down a definitive answer on whether force should ever be used to impose democracy …
Assuming Bosnia: Taking The Polity Seriously In Ethnically Divided Societies, Timothy W. Waters
Assuming Bosnia: Taking The Polity Seriously In Ethnically Divided Societies, Timothy W. Waters
Timothy W Waters
This essay is a reflection on democracy, justice and intervention. It focuses on the Bosnian experience, where since the Dayton Accords the indispensable context for reform has been the international protectorate. This essay examines the assumptions used by the international community to govern Bosnia, which suggest a policy premised upon resistance to the fragmentation of the state under any circumstances, and a belief that the international intervention is simultaneously morally justified and a purely technical process for increasing efficiency. How necessary – indeed, how related at all – are those commitments to the dictates of justice? What is their relationship …
Waving Hello To Democratic Renewal, Christine Bell
Waving Hello To Democratic Renewal, Christine Bell
Human Rights & Human Welfare
Khanna’s argument is simple. American hegemony and the unipolar world have collapsed—without America noticing. The new world is tri-polar. America must compete with Europe’s soft power influence, and China’s economic power influence. The new global game for the “second world” (Turkey, South America, the former USSR “Stans”) is to play all three superpowers against each other, while pretending to be the friends of all.
The Theocratic Challenge To Constitution Drafting In Post-Conflict States, Ran Hirschl
The Theocratic Challenge To Constitution Drafting In Post-Conflict States, Ran Hirschl
William & Mary Law Review
No abstract provided.
Kosovo: The Day After, Timothy William Waters
Kosovo: The Day After, Timothy William Waters
Articles by Maurer Faculty
No abstract provided.
Why Is International Law Binding?, Anthony D'Amato
Why Is International Law Binding?, Anthony D'Amato
Faculty Working Papers
Many writers believe that international law is precatory but not "binding" in the way domestic law is binding. Since international law derives from the practice of states, how is it that what states do becomes what they must do? How do we get bindingness or normativity out of empirical fact? We have to avoid the Humean fallacy of attempting to derive an ought from an is. Yet we can find in nature at least one norm that is compelling: the norm of survival. This norm is hardwired into our brains through evolution. It is also hardwired into the international legal …
A Hartman Hotz Symposium: Intelligence, Law, And Democracy, Steve Sheppard, Robin Butler, William Howard Taft Iv, Alberto Mora
A Hartman Hotz Symposium: Intelligence, Law, And Democracy, Steve Sheppard, Robin Butler, William Howard Taft Iv, Alberto Mora
Steve Sheppard
On April 25, 2007, the Hartman Hotz Trust of the University of Arkansas hosted a symposium to discuss the relationships between intelligence, law, and democracy. This article contains a transcript of the topics discussed at the symposium. Don Bobbit, Dean of the Fulbright College introduced the panel, and Steve Sheppard, Enfield Professor of Law, moderated the discussion. The panelists included three guests with experience in the intelligence field: Lord Robin Butler, former head of the British Civil Service; Alberto Mora, former General Counsel of the United States Navy; and William Howard Taft IV, former Acting Secretary of Defense and Legal …
Feeling Good Or Doing Good: Inefficacy Of The U.S. Unilateral Sanctions Against The Military Government Of Burma/Myanmar, Thihan M. Nyun
Feeling Good Or Doing Good: Inefficacy Of The U.S. Unilateral Sanctions Against The Military Government Of Burma/Myanmar, Thihan M. Nyun
Thihan M Nyun
No abstract provided.
Partidos, Gobierno Y Congreso: Chile Y Perú, 1965-2005, Jose Luis Sardon
Partidos, Gobierno Y Congreso: Chile Y Perú, 1965-2005, Jose Luis Sardon
Jose Luis Sardon
En el presente artículo se argumenta que las diferencias en los niveles de desarrollo alcanzados por Chile y Perú en los últimos 40 años se explican no solo por las reformas económicas emprendidas en uno y otro país sino también por la reforma política realizada en Chile en 1988, mediante la cual se sustituyó el sistema de representación proporcional por un sistema binominal para la elección del Congreso. Esto habría brindado incentivos para la consolidación del sistema de partidos y la estabilización del proceso democrático en Chile. Por el contrario, Perú, al haber persistido y aún profundizado la proporcionalidad de …